Summary: Montana
Schools Group Insurance Authority (MSGIA) accepted liability for school
custodian's back injury and paid disability and medical benefits. When
claimant reached MMI, she was restricted to sedentary to light-duty work.
MSGIA and claimant settled her claim for indemnity benefits with the proviso:
"Further medical and hospital benefits are reserved by the claimant."
At the time of the settlement, MSGIA was paying for claimant's injury-related
medications. Subsequently, a new adjuster on the file determined that
claimant was not working and was not entitled to payment for her medications.
The adjuster relied on section 39-71-704(1)(b), MCA (1995), which provides
that the insurer shall furnish secondary medical services "only upon a
clear demonstration of cost-effectiveness of the services in returning
the injured worker to actual employment." The insurer argued that claimant
has already reached MMI, so the prescriptions are not primary medical
services under section 39-71-704(1)(a), MCA (1995), and that coverage
under subsection 1(b) is not mandated where claimant is not working. Claimant
is in fact receiving Social Security Disability benefits and there is
no showing she is diligently seeking work. Claimant argues: (1) the settlement
agreement, executed at a time when the insurer was paying for prescriptions,
requires continued coverage; (2) prescriptions should be covered in order
to maintain claimant's "medical stability"; and (3) the insurer should
be estopped from denying coverage.

Held:
The settlement agreement, by reserving medical benefits, did nothing more
than reserve to claimant those medical benefits to which she is entitled
under section 39-71-704, MCA (1995). Claimant's entitlement to coverage
of the prescriptions, if such exists, must arise under the provisions
of that section. The statutes regarding medical services are, unfortunately,
poorly written and raise difficult questions of statutory interpretation.
Under the statutes as written, prescriptions after claimant has reached
MMI are not "primary medical services" because the term primary medical
services is defined in section 39-71-116(25), MCA (1995), as "treatment
. . . necessary for achieving medical stability." (Emphasis added.)
Coverage does not arise under the secondary medical services provision,
subsection (1)(b), because secondary medical services are compensable
only upon a demonstration of cost-effectiveness in returning claimant
to actual employment and claimant has not satisfied that requirement.
While this reading may render some statutory provisions meaningless, the
Court is forced to choose between inserting language into the statutes
which is not present, or construing some provisions as meaningless. It
must choose the latter. Finally, the insurer is not estopped from prospectively
refusing coverage of prescriptions where claimant has not demonstrated
any detriment.

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-704(1)(b),
MCA (1995). Where claimant has reached MMI, is not working,
and is unlikely to work, she is not entitled to continued coverage of
prescription medications under provisions authorizing secondary medical
services because the provision limits secondary medical services to
cases in which there is "a clear demonstration of cost-effectiveness
of the services in returning the injured worker to actual employment."
§ 39-71-704(1)(b), MCA (1995).

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-704, MCA
(1995). Where claimant has reached MMI, is not working, and
is unlikely to work, there is no provision in section 39-71-704, MCA
(1995), which requires payment for her medications.

Benefits: Medical
Benefits: Prescriptions. Claimant is not entitled to continued
coverage of prescription medications were she has reached MMI, is not
working, and is unlikely to work. Prescription coverage as a medical
benefit must arise under section 39-71-704, MCA (1995). While statutes
regarding medical services are poorly written, the medications are not
within provisions authorizing primary medical services since those services
are available only prior to MMI, § 39-71-116(25), MCA (1995), or provisions
authorizing secondary medical services, since those services are available
only if there is a "clear demonstration of cost-effectiveness of the
services in returning the injured worker to actual employment." § 39-71-704(1)(b),
MCA (1995). The medications are also not within provisions allowing
for palliative and maintenance care. § 39-71-704(1)(f)-(g), MCA (1995).

Benefits: Medical
Benefits: Primary Medical Services. After claimant has reached
MMI, she is not entitled to continued coverage of prescription medications
under provisions authorizing primary medical services, § 39-71-704(1)(a),
MCA (1995), because such services are defined as and limited to services
"necessary for achieving medical stability." § 39-71-116(25),
MCA (1995) (emphasis added).

Benefits: Medical
Benefits: Secondary Medical Services. Where claimant has reached
MMI, is not working, and is unlikely to work, she is not entitled to
continued coverage of prescription medications under provisions authorizing
secondary medical services because the provision limits secondary medical
services to cases in which there is "a clear demonstration of cost-effectiveness
of the services in returning the injured worker to actual employment."
§ 39-71-704(1)(b), MCA (1995).

Estoppel and Waiver:
Equitable Estoppel. Insurer was not equitably estopped from
discontinuing prospective coverage of prescriptions to which claimant
was not entitled under section 39-71-704, MCA (1995), where she did
not prove detriment.

Settlements: Medical
Benefits. Where claimant has settled her entitlement to indemnity
benefits but reserved "[f]urther medical and hospital benefits," she
is entitled only to those benefits ordinarily available to her under
statutory provisions for medical benefits.

Statutes and Statutory
Interpretation: Absurd Results. Even though plain construction
of statute may lead to an absurd result, the Court cannot rewrite the
statute or insert additional provisions in the statute.

Statutes and Statutory
Interpretation: Inserting or Removing Items. Even though plain
construction of statute may lead to an absurd result, the Court cannot
rewrite the statute or insert additional provisions in the statute.

¶1 The trial in this matter
was held on April 11, 2001, in Missoula, Montana. Petitioner, Eula Mae
Hiett (claimant), was present and represented by Ms. Sydney E. McKenna.
Respondent, MSGIA, was represented by Mr. Leo S. Ward.

¶2 Exhibits: Exhibits
2, 3, and 8 were admitted without objection. Exhibits 1 and 4 through
7 were admitted over relevancy objections. If mentioned in this decision,
they are relevant.

¶3 Witnesses and Deposition:
The parties submitted the deposition of Charles Edquest for the Court's
consideration. Claimant and Charles Edquest were sworn and testified.

¶4 Issues Presented:

1. Did the Insurer breach
the settlement agreement when it stopped paying medical benefits.

2. Was the Insurer's unilateral
decision to terminate benefits and subsequent failure to notify claimant
of that decision unreasonable.

3. If the Insurer's actions
were unreasonable, is claimant entitled to attorney fees.

4. Was the delay in payment
of benefits promised unreasonable and if so is claimant entitled to
a 20% increase in those benefits.

5. Is the Insurer estopped
from termination of claimant's medical benefits.

6. Are claimants [sic] medical
benefits secondary medical benefits and thereby not owed even though
the Insurer agreed to reserve medical benefits.

(Pretrial Order at 2.)

¶5 Having considered the Pretrial
Order, the testimony presented at trial, the demeanor and credibility
of the witnesses, the deposition and exhibits, and the parties' arguments,
the Court makes the following:

FINDINGS
OF FACT

¶6 Claimant is 64 years old.
She has a history of back pain dating back to 1980. (Ex. 1 at 736.) She
also has a history of asthma dating back to 1981. (Id.) She presently
suffers from asthma, chronic obstructive pulmonary disease, and osteoporosis,
as well as a bad back.

¶7 In 1981 the Missoula County
Public Schools (School District) hired claimant as a custodian. (Id.
at 24.) She continued working for the School District through 1996.

¶8 On March 1, 1996, claimant
was lifting a 30-gallon trash can into a dumpster when she experienced
a sharp pain in her back. (Id. at 24.) She was subsequently diagnosed
as suffering compression fractures in the thoracic spine at the T6 and
T8 levels. (Ex. 1 at 727, 732, 734.)

¶9 At the time of the injury,
the School District was a member of a school self-insurance pool known
as Montana Schools Group Insurance Authority (MSGIA). (Uncontested Fact
No. 2.) MSGIA accepted liability for claimant's condition and paid disability
and medical benefits. (Uncontested Fact No. 3.)

¶10 Claimant continued to experience
back pain. She began treating with Dr. Aaron W. Sable, a physiatrist.
Dr. Sable found her at maximum medical improvement (MMI) on June 5, 1996,
and permanently restricted her to sedentary to light-duty work. (Ex. 1
at 744-45.)

¶11 On July 29, 1996, claimant
returned to work in a part-time, modified school custodian position. Initially
she worked two hours a day; later on she worked four hours a day. (Id.
at 37-38, 60-61.) In August she reported to Dr. Sable that she had
been working four hours a day as custodian but that the window washing,
climbing ladders, mopping, and cleaning bathrooms were aggravating her
back pain. (Id. at 749.) He recommended that she contact Kathy
Kleinkopf (Kleinkopf) to see if she could get a hall monitor job with
the School District. (Id.)

¶12 When claimant followed-up
with Dr. Sable on August 27, 1996, he noted that she was depressed about
her situation at work as she felt she had no future. (Id. at
751.) Dr. Sable later diagnosed her as suffering anxiety and depression
(id. at 752-55), and opined that her depression was related to
her pain and her inability to work as a janitor for the School District
(id. at 96). Based on Dr. Sable's opinion, MSGIA accepted liability
for psychotropic medications. (Id. at 188.) Dr. Noel L. Hoell,
a psychiatrist, who examined claimant in January 1997 at MSGIA's request,
provided further verification that claimant's depression was related to
her industrial accident. (Id. at 775.)

¶13 In December 1996, the School
District notified claimant that her employment was being terminated effective
January 3, 1997. (Id. at 97-98.)

¶14 In January 1997, claimant
began receiving Social Security Disability (SSD) benefits retroactive
to September 1996. (Id. at 200.)

¶15 Meanwhile, a vocational
consultant for MSGIA prepared a number of job analyses for jobs she felt
were appropriate for claimant. Several of the job descriptions - para-educator/student
supervisor, school crossing guard, and motel cleaner - were approved in
September 1996 by Dr. Sable without conditions. (Id. at 137,
156, 161.) Others were approved on either a trial basis or with modifications
and comments. (Id. at 144, 151, 167, 172, 183.) The approved
jobs paid from $4.49 to $5.63 per hour. Claimant had been earning over
$10.00 an hour as a custodian. (Id. at 24, 90.)

¶16 Based on Dr. Sable's MMI
determination and his approval of alternative jobs, on October 14, 1996,
MSGIA terminated claimant's temporary partial disability (TPD) benefits.
(Id. at 80-81.) It tentatively calculated her permanent partial
disability (PPD) entitlement at 26%, or $17,290. (Id. at 81.)
However, an impairment rating was not available at that time. It also
notified claimant that she might be entitled to rehabilitation benefits.
(Id.)

¶17 Claimant received impairment
ratings from both Dr. Sable and Dr. David C. Gray, a chiropractor. Dr.
Sable's rating was 2% (id. at 744) and Dr. Gray's was 32%. (Id.
at 195.)

¶18 Negotiations over the claimant's
entitlement to PPD and rehabilitation benefits commenced in January 1997.
(Id. at 198.) By that time, claimant was represented by counsel,
who proposed a $39,235 settlement. (Id.) After an exchange of
offers and counteroffers (id. at 206-13), in July 1997, the parties
entered into a settlement agreement compromising the claim for the sum
of $27,930. (Id. at 230.) The agreement, which was approved by
the Department of Labor and Industry (Department), closed rehabilitation
benefits but reserved medical benefits. (Id.) The reservation
of medical benefits reads, "Further medical and hospital benefits
are reserved by the claimant." (Id., emphasis in original.)

¶19 At the time of the settlement,
the claims adjuster for the School District had the following information
about claimant's employment situation:

¶19A Claimant's modified
job with the School District had been terminated six months previous
without any indication to the claims adjuster of re-employment or any
inquiry by the claims adjuster into claimant's efforts to find a job.
(Ex. 1 at 97, 186.)

¶19B Claimant had been offered
a lunch co-hostess position by the School District in the fall of 1996
but turned the position down. (Id. at 190.) (Claimant testified
that the position was only two hours a day.) There were also a number
of crossing guard, noon duty aide, and co-hostess jobs with the School
District which were available during the last four months of 1996 but
claimant did not apply for them. (Id. at 188.) She did apply
for but did not get a full-time hall monitor job because she was not
qualified for the position. (Id. at 186, 188.)

¶19C Claimant had been found
disabled and awarded SSD benefits in January 1997. (Id. at
200-202.)

¶19D On January 27, 1997,
claimant submitted her application for retirement to the Public Employees
Retirement System. (Id. at 197.)

¶20 At no time prior to the
settlement did MSGIA tell claimant or her attorney that continued payment
for medications were dependent upon claimant obtaining employment.

¶21 At the time of the settlement,
the claimant believed that MSGIA would continue to pay for injury-related
medications for the remainder of her life. She testified that had she
known that it would not, then she would not have settled her claim. However,
while claimant might have refused to enter into the settlement if she
had been aware MSGIA would not pay for prescription drugs unless she was
employed. I am persuaded that she is not in a worse position
now than she would have been had she been aware of such fact. Even if
she had refused to enter into the agreement her medical benefits would
still be limited to those provided by statute. And she has failed to prove
that she could have extracted any greater compensation benefits had she
not settled. She did not, and does not, contend that she was entitled
to permanent total disability (PTD) benefits. The sole dispute between
the parties was the impairment award. (Ex. 1 at 200-216.) Except for the
dispute over the impairment award, she got exactly what she demanded.
As to the disputed impairment award, claimant has failed to present evidence
showing that she could have obtained a greater impairment award than obtained
through the settlement.

¶22 At the time of the settlement,
claimant was not working. Since then she has worked occasionally selling
tickets at high school sporting events. She was also employed from May
23, 2000 to November 21, 2000, as an assisted-living attendant for the
Senior Village Residence (Senior Village). (Ex. 7 at 9.) Claimant left
that job when hospitalized for drug withdrawal from narcotic medications
she had been taking. She also testified that she has looked for work since
losing her job with the School District but Wal-Mart and other businesses
will not hire her because of her back condition.

¶23 MSGIA began paying for
claimant's pain medications in May 1996 and for anti-depressants in August
1996. Following the settlement, it continued to pay for the medications
until January 1999, when Charles Edquest (Edquest) began adjusting the
claim. He determined that claimant was not working and was therefore not
entitled to payment for her medications. He relied on section 39-71-704(1)(b),
MCA (1995), which provides that "the insurer shall furnish secondary medical
services only upon a clear demonstration of cost-effectiveness of the
services in returning the injured worker to actual employment." Secondary
services, by definition, are "those medical services or appliances that
are considered not medically necessary for medical stability." § 39-71-116(29)(a),
MCA (1995).

¶24 In cutting off payment
for claimant's medications, Edquest did no investigation other than to
review documents in the claims file. (Edquest Dep. at 27, 39-41, 48.)
The file contains nothing indicating that MSGIA inquired as to claimant's
job status or whether her medications were necessary for her to continue
employment.

¶25 MSGIA did not inform claimant
of the cutoff of benefits and did not tell her she might requalify for
payment of medications if she returned to work. In fact, claimant did
not learn that MSGIA had stopped paying for her medications until the
Fall of 1999 when she went to Wal-Mart for a prescription refill and discovered
she had an outstanding balance of approximately $1600.(1)

¶26 On October 7, 1999, claimant's
attorney contacted Edquest about paying for claimant's medications, specifically
for her anti-depressants. (Id. at 246.) She wrote that MSGIA
had previously agreed to pay for the anti-depressants. (Id.)
Edquest agreed to pay for the medications, in part because he had not
informed claimant or her attorney regarding the termination of her medical
benefits. (Edquest Dep. at 25-26, 34, 46, 49, 55-56.) However, the bills
for claimant's medications remained unpaid for several months.

¶27 Since the bills remained
unpaid, claimant requested mediation. On March 13, 2000, following mediation,
MSGIA paid $1,200 in prescription bills, however, some bills which Edquest
promised to pay were not paid. Claimant's attorney again wrote to Edquest
on April 14, 2000, advising him that some prescription expenses for claimant
were still outstanding. (Ex. 1 at 267.) Edquest was apologetic for the
delays in payments which he had agreed to pay, citing various explanations
for the delay. Essentially, the reasons he gave were institutional ones,
involving oversight or processing problems.

¶28 At some point, claimant
and her attorney were notified that MSGIA contested payment for further
medications if claimant was not working. A second mediation was held in
September 2000. At the time of the second mediation, claimant was working
as an assisted-living attendant at the Senior Village, so the mediation
was postponed pending a response from claimant's treating physician as
to the necessity of claimant's medications. (Id. at 300.) Dr.
Smith responded on September 20, 2000, that claimant's depression and
pain medications were "essential" for claimant and would control her pain
to a degree that would allow her to work. (Id. at 276.) MSGIA
then agreed to pay claimant's medical bills as long as she works. (Edquest
Dep. at 54.)

¶29 Some prescriptions still
remained unpaid as of December 31, 2000, and a third mediation was requested.
However, by the time of that mediation, claimant was no longer working
and the parties could not reach agreement as to claimant's further entitlement
to payment for prescription drugs. MSGIA maintained its position that
it is not liable for claimant's prescription benefits because they are
secondary benefits and claimant is not working.

¶30 Claimant then petitioned
the Court. Pending a final decision by the Court, MSGIA agreed to continue
to pay for claimant's injury-related medications under a reservation of
rights. At the time of trial, all medications had been paid.

CONCLUSIONS
OF LAW

¶31 The 1995 version of the
Workers' Compensation Act applies to claimant's injury since that was
the law in effect on the date of her injury. Buckman v. Montana Deaconess
Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986.)

¶33 This case involves interpretation
and application of provisions for medical benefits. Those provisions are
found in section 39-71-704(1), MCA (1995). Some of the terms used in the
section are defined in section 39-71-116, MCA (1995).

¶34 The portions of section
39-71-704(1), MCA (1995), potentially applicable to the present case are
as follows:

(1) In addition to the compensation
provided under this chapter and as an additional benefit separate and
apart from compensation benefits actually provided, the following must
be furnished:

(a) After the happening
of a compensable injury and subject to other provisions of this chapter,
the insurer shall furnish reasonable primary medical services for conditions
resulting from the injury for those periods as the nature of the injury
or the process of recovery requires.

(b) The insurer shall furnish
secondary medical services only upon a clear demonstration of cost-effectiveness
of the services in returning the injured worker to actual employment.

. . . .

(f) Notwithstanding
subsection (1)(a), the insurer may not be required to furnish, after
the worker has achieved medical stability, palliative or maintenance
care except:

(i) when provided
to a worker who has been determined to be permanently totally disabled
and for whom it is medically necessary to monitor administration of
prescription medication to maintain the worker in a medically stationary
condition; or

(ii) when necessary
to monitor the status of a prosthetic device.

(g) If the worker's
treating physician believes that palliative or maintenance care that
would otherwise not be compensable under subsection (1)(f) is appropriate
to enable the worker to continue current employment or that there is
a clear probability of returning the worker to employment, the treating
physician shall first request approval from the insurer for the treatment.
If approval is not granted, the treating physician may request approval
from the department for the treatment. The department shall appoint
a panel of physicians, including at least one treating physician from
the area of specialty in which the injured worker is being treated,
pursuant to rules that the department may adopt, to review the proposed
treatment and determine its appropriateness.

The section 39-71-116, MCA
(1995), definitional sections are as follows:

(16) "Maintenance care"
means treatment designed to provide the optimum state of health while
minimizing recurrence of the clinical status.

(17) "Medical stability",
"maximum healing", or "maximum medical healing" means a point in the
healing process when further material improvement would not be reasonably
expected from primary medical treatment.

. . . .

(20) "Palliative care"
means treatment designed to reduce or ease symptoms without curing the
underlying cause of the symptoms.

(29)(a) "Secondary
medical services" means those medical services or appliances that are
considered not medically necessary for medical stability. The services
and appliances include but are not limited to spas or hot tubs, work
hardening, physical restoration programs and other restoration programs
designed to address disability and not impairment, or equipment offered
by individuals, clinics, groups, hospitals, or rehabilitation facilities.

(b)(i) As used in this
subsection (29), "disability" means a condition in which a worker's
ability to engage in gainful employment is diminished as a result of
physical restrictions resulting from an injury. The restrictions may
be combined with factors, such as the worker's age, education, work
history, and other factors that affect the worker's ability to engage
in gainful employment.

(ii) Disability does
not mean a purely medical condition.

¶35 Claimant tenders three
theories to support her claim that the insurer should continue paying
for her injury-related prescriptions whether or not she is working. First,
she contends that whether or not she is statutorily entitled to the benefits,
she is contractually entitled to them pursuant to the settlement agreement.
Second, she contends that the medications are "necessary for medical stability"
and therefore not within the "secondary medical services" exclusion. Third,
she argues that MSGIA either waived its right to contest her entitlement
to the benefits or is estopped from doing so. I will address the arguments
in order.

I. Settlement Agreement

¶36 The settlement agreement
provides, "Further medical and hospital benefits are reserved by the claimant."
Medical and hospital benefits are governed by section 39-71-704, MCA (1995),
as set forth above. The language in the settlement agreement does nothing
less or more than reserve to claimant the benefits to which she is statutorily
entitled. There is nothing in the language to suggest that the parties
intended to expand benefits beyond those provided in the Workers' Compensation
Act, and there is nothing ambiguous in the reference to the benefits.
The claimant's first argument is without merit.

II. Medical Stability

¶37 The claimant argues that
her medications are necessary for her to maintain "medical stability,"
hence they are not excluded secondary medical services. She relies upon
the definition of secondary medical services as "those medical services
or appliances that are considerednot medically necessaryfor medical stability." § 39-71-116(a), MCA (1995) (emphasis
added). Essentially, she argues that her medications are medically necessary
for her to maintain medical stability, and therefore
do not fall under the secondary medical services limitation.

¶38 Unfortunately, the statutes
regarding medical services are poorly written and raise extremely difficult
questions of statutory interpretation. I will outline the difficulties
in interpreting the statutes.

¶39 Initially, section 39-71-704(1)(a),
MCA (1995), requires payment for all "primary medical services." "Primary
medical services" are defined as "treatment . . . necessary for achievingmedical stability." § 39-71-116(25), MCA (1995). "Medical stability,"
of course, is the same thing as "maximum medical improvement" and "maximum
medical healing," meaning the "point in the healing process when further
material improvement would not be reasonably expected from primary medical
treatment." § 39-71-116(17), MCA (1995). MSGIA's argument appears straightforward:
Since claimant "achieved" medical stability, the primary services provision
does not apply, and the authorization in section 39-71-704(2), MCA (1995),
for secondary services also does not apply because the services authorized
by that section are limited to services for which there is "a clear demonstration
of cost-effectiveness of the services in returning the injured worker
to actual employment" and claimant has offered no evidence to support
that conclusion.

¶40 The medical stability definition
is circular insofar it defines medical stability as a point where "further
material improvement would not be reasonably necessary from primary
medical treatment." "Primary medical treatment" is defined as
"treatment . . . necessary for achieving medical stability." Plugging
that definition into the medial stability definition yields a definition
of medical stability as "a point in the healing process when further material
improvement would not be reasonably expected from treatment necessary
for achieving medical stability." I must therefore read the provision
simply meaning that "any further medical treatment" would not materially
improve a claimant's condition.

¶41 Even though a claimant
may have reached medical stability, her condition may deteriorate and
require further treatment to again reach stability. For example, a worker
may suffer a herniated disk, not need surgery, and thereafter get as good
as she is going to get with conservative treatment, i.e., reach MMI. Later
on, however, her condition may deteriorate to the point that surgery is
necessary to improve her condition. At that point, she will no longer
be at MMI since there is now treatment which will materially improve her
condition. Thus, the surgery will be a "primary medical service."

¶42 Analogous to the foregoing
case is a situation where a claimant reaches MMI through drug therapy
but the drug therapy must be continued to maintain her in a medically
stable condition. A clear example is hypothyroidism, which is treatable
with natural or synthetic thyroxine or triiodothyronine; withdraw the
drug and the individual returns to hypothyroidism, which causes physical
complications. At that point the claimant (assuming the hypothyroidism
is a work-related condition) is no longer at MMI. With the return to non-MMI
status, the drug again becomes a primary medical service. The example
given here could very well apply to the claimant's treatment for depression.

¶43 The treatment of pain with
drug therapy is further removed, but still may be analogous; withdraw
pain medication and not only may the individual's suffering increase but
she may also suffer physical regression when compensating for her increased
pain. The increased pain may also cause increased disability. Pain control
is a component of the "healing process" and reintroduction of pain medications
may therefore materially improve the individual's condition and once more
constitute primary medical services.

¶44 Does the primary-secondary
services distinction require that claimant terminate drug therapy and
relapse before the insurer is once again liable for the therapy? Applying
the primary services provision as written, it appears so, unless some
other provision requires payment of medications once the worker has reached
MMI.

¶45 One possible source of
authority for payment of medications prescribed after MMI is the secondary
services provision set forth in section 39-71-704(1)(b), MCA (1995), which
provides:

(b) The insurer shall furnish
secondary medical services only upon a clear demonstration of cost-effectiveness
of the services in returning the injured worker to actual employment.

On its face, the subsection
requires secondary medical services where cost-effective to return an
injured worker to actual employment. It has no application to the present
facts since claimant has failed to demonstrate her medications will enable
her to return to actual employment. Similarly, it has no application to
permanently totally disabled claimants, or to permanently partially disabled
claimants where cost-effectiveness is unproven.

¶46 Another possible source
is found within definition of secondary services. Section 39-71-116(29),
MCA (1995), provides in relevant part:

(29) (a) "Secondary
medical services" means those medical services or appliances that are
considered not medically necessary for medical stability.
The services and appliances include but are not limited to spas or hot
tubs, work hardening, physical restoration programs and other restoration
programs designed to address disability and not impairment, or equipment
offered by individuals, clinics, groups, hospitals, or rehabilitation
facilities. [Emphasis added.

The bolded language does not
contain the word "achieve," as does the primary services provision in
section 39-71-704(1)(a), MCA (1995). "Medically necessary for medical
stability" can reasonably be read as meaning not only medically necessary
for "achieving" but also for "maintaining" medical stability.
If that reading is a correct one, then medications and other services
necessary for maintaining or keeping a claimant at medical stability,
and without which the claimant would revert to non-MMI status, would not
be secondary medical services at all. The problem is with the next step,
to wit, finding authority for payment of this other type of medical service.
I am unable to find that authority in section 39-71-704, MCA (1995), or
any other section.

¶47 A third source is the palliative
and maintenance care provisions found in subsections (1)(f) and (1)(g)
of section 39-71-704, MCA (1995). Palliative care, as noted before, is
"treatment designed to reduce or ease symptoms without curing the underlying
cause of the symptoms." § 39-71-116(20), MCA (1995). Maintenance care
is "treatment designed to provide the optimum state of health while minimizing
recurrence of the clinical status." § 39-71-116(16), MCA (1995). On-going
pain medication and anti-depressants could be characterized as both.

¶48 Neither of the palliative/maintenance
care subsections apply. Subsection (1)(g) of section 39-71-704, MCA (1995),
does not apply since it requires a showing that the treatment will enable
the claimant to continue or return to employment. Subsection (1)(f) does
not apply since claimant is not permanently totally disabled (subsection
(1)(f)(i)) and a prosthetic (subsection (1)(f)(ii)) is not involved.

¶49 Some of the language in
subsection (1)(f), however, is confusing. The subsection begins, "Notwithstanding
subsection (1)(a), the insurer may not be required to furnish,
after the worker has achieved medical stability, palliative or maintenance
care. . ." (Emphasis added.) The language
is confusing because subsection (1)(a), to which the bolded language refers,
requires the furnishing of medical services only until the worker achieves
medical stability. It does not require furnishing services after the worker
reaches medical stability. Thus, the "notwithstanding" language of subsection
(1)(f) is either meaningless, or the legislature intended the primary
services provision to encompass the furnishing of some medical services
even after the claimant has reached MMI. If indeed it did so intend, it
failed to specify those services.

¶50 And that is not the end
of the confusion within the subsection. Subsection (1)(f)(i) provides
for payment of maintenance and palliative care for permanently totally
disabled workers which "is medically necessary to monitor administration
of prescription medication to maintain the worker in a medically stationary
condition." The drug monitoring exception applies only to permanently
totally disabled workers, who by definition have reached MMI. Where is
the requirement that the insurer pay for the drug therapy itself as opposed
to the monitoring of the therapy? It is not in subsection (1)(a) since
the claimant has achieved MMI, and I cannot find it anywhere else. It
is, of course, absurd to require an insurer to pay for monitoring of drug
therapy but not the drugs themselves, and the provision strongly suggests
that the legislature intended insurers to pay for post-MMI prescription
drugs for at least permanently totally disabled claimants.

¶51 Absurd construction of
a statute is, of course, to be avoided if at all possible. "It is a well-established
rule of statutory construction that a statute is to be read as a whole
and construed so as to avoid absurd results." Clover Leaf Dairy v.
State, 285 Mont. 380, 388-89, 948 P.2d 1164, 1169 (1997). But the
Court is also constrained by the prohibition against inserting additional
terms and requirements that are not in the statute. Russette v. Chippewa
Cree Housing Authority, 265 Mont. 90, 93, 874 P.2d 1217, 1219 (1994).
I read the latter prohibition as trumping the absurd construction rule.
Thus, even after reading all of the various provisions in section 39-71-704,
MCA (1995), and construing them together, I am unable to find anything
in the statute which could be construed as requiring payment for medications
after a worker has reached medical stability except where the medications
would return the claimant to employment or enable an employed claimant
to continue working. § 39-71-704(1)(b) and (1)(g), MCA.

III. Waiver and Estoppel

¶52 Claimant's final argument
is that MSGIA waived its right to contest claimant's entitlement to payment
for medications or is estopped from doing so.

¶53 "Waiver is an equitable
doctrine, applicable when there is an intentional or voluntary relinquishment
of a known right, claim or privilege, or such conduct as warrants an inference
of the relinquishment of such right." Sperry v. Montana State University,
239 Mont. 25, 30, 778 P.2d 895, 898 (1989). Unlike the insurer in the
recent case of Swartz v. State Fund, 2001 MTWCC 50, MSGIA did
not expressly state that claimant is entitled to the benefits she seeks.
Certainly, in signing the settlement agreement, it expressly agreed to
pay any medical benefits required by statute. Although it was paying benefits
without evidence of employment or the likelihood of employment when the
agreement was signed, that conduct does not rise to the level of an intentional
and voluntary relinquishment of its right to contest claimant's right
to payment for prescription drugs.

¶54 As a general matter, estoppel
arises when a party, through its acts, conduct, or acquiescence, has caused
another party in good faith to change its position for the worse. Selley
v. Liberty Northwest Ins. Corp., 299 Mont. 127, 998 P.2d 156 (2000)(citations
omitted). The doctrine is designed to prevent one party from unconscionably
taking advantage of a wrong while asserting a strict legal right, and
will be invoked where "justice, honesty, and fair dealing" are promoted.
In re Marriage of K.E.V. 267 Mont. 323, 331, 883 P.2d 1246, 1251(1994).

¶55 The six elements of equitable
estoppel are:

1. There must be conduct
amounting to a representation or a concealment of material facts;

2. These facts must be known
to the party estopped at the time of the conduct, or at least the circumstances
must be such that knowledge of them is necessarily imputed to him;

3. The truth concerning
these facts must be unknown to the other party claiming the benefit
of the estoppel, at the time when it was acted upon by him;

4. The conduct must be done
with the intention, or at least with the expectation, that it will be
acted upon by the other party, or under such circumstances that it is
both natural and probable that it will be so acted upon;

5. The conduct must be relied
upon by the other party, and, thus relying, he must be led to act upon
it;

6. He must in fact act upon
it in such a manner as to change his position for the worse, in other
words, he must so act that he would suffer a loss if he were compelled
to surrender or forego or alter what he has done by reasons of the first
party being permitted to repudiate his conduct and to assert rights
inconsistent with it.

¶56 Even assuming that MSGIA
represented, at least implicitly, that it would pay for prescription drugs
for claimant's lifetime irrespective of her employment situation, and
that the next four elements are also met, the sixth element -- detriment
to the claimant -- is lacking. To show detriment, claimant must prove
that she is worse off because of the alleged misrepresentation. She has
failed to persuade me that is the case. While she might have refused to
enter into the settlement had she been aware MSGIA would not pay for prescription
drugs, what would she have gained by her refusal? She could not have insisted
on payment for prescription drugs unless she satisfied the terms of section
39-71-704, MCA (1995). She did not, and does not, contend she was entitled
to PTD benefits. Except for the dispute over the impairment award, she
got exactly what she demanded. (Ex. 1 at 200-216.) As to the disputed
impairment award, claimant has failed to present evidence showing that
she could have obtained a greater impairment award than obtained through
the settlement. Since element (6) is lacking, MSGIA is not estopped from
denying payment for claimant's prescription drugs.

IV. Summary

¶57 Claimant has failed to
establish her entitlement to prescription drugs. If in the future she
secures employment and satisfies the conditions of section 39-71-704(1)(b)
or (1)(g), MCA (1995), at that time she may become entitled to payment
for her prescription medications.

V. Penalty and Attorney Fees

¶58 Although claimant is not
entitled to further prescription benefits until she meets the statutory
criteria for those benefits, she is entitled to a penalty with respect
to the benefits MSGIA agreed to pay but failed to pay within a reasonable
time. Section 39-71-2907, MCA (1995), provides:

39-71-2907. Increase
in award for unreasonable delay or refusal to pay. (1)

The workers' compensation
judge may increase by 20% the full amount of benefits due a claimant
during the period of delay or refusal to pay, when:

(a) the insurer
agrees to pay benefits but unreasonably delays or refuses to make the
agreed-upon payments to the claimant; or

(b) prior or subsequent
to the issuance of an order by the workers' compensation judge granting
a claimant benefits, the insurer unreasonably delays or refuses to make
the payments. [Emphasis added.]

In October 1999, MSGIA agreed
to pay for prescription drugs up to that time, however, it failed to do
so until March 2000. It also failed for several months to pay all prescription
bills for the period claimant was working in 2000 despite its agreement
to do so. Its delay in making the agreed payments was unreasonable and
its excuses unavailing. It had a duty to insure that the bills were paid
within a reasonable time. Claimant is therefore entitled to a 20% penalty
with respect to the amounts due through October 1999 and amounts due for
the period in 2000 during which claimant was working and which were unpaid
as of December 31, 2000. If the parties cannot compute the amounts, the
Court will hold a further hearing to determine what is due.

¶59 Claimant is not entitled
to attorney fees under either sections 39-71-611 or -612, MCA (1995),
since both sections require that the Court award claimant benefits as
a prerequisite to attorney fees.

JUDGMENT

¶60 Claimant is not entitled
to payment for prescription drugs at present, although she may become
entitled to such payment if she finds employment and satisfies the conditions
of section 39-71-704(1)(b) or (1)(g), MCA (1995).

¶61 Claimant is entitled to
a penalty with respect to the late payments made by MSGIA with respect
to prescription bills incurred between January 1, 1999 and October 30,
1999, and also those bills incurred during claimant's period of employment
in 2000 which were unpaid as of December 31, 2000.

¶62 Claimant is not entitled
to attorney fees.

¶63 Claimant is entitled to
costs with respect to the penalty issue.

¶64 This JUDGMENT is certified
as final for purposes of appeal.

¶65 Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusions of Law and Judgment.